New Responsibilities 
of Citizenship 


Suggesting- Certain Limitations 

on the Use of the 

Initiative and Referendum 

I 


An Address 

Delivered Before the Oregon Bar Association 
at Portland, Oregon, November 18, 1908 
by 

CHARLES H. CAREY 

‘1 

of the Portland Bar 








Foreword 


This address is printed in response to numerous requests 
for copies, which I take to indicate a very general interest in the 
subject discussed. I assume that there is no popular demand for 
the repeal of the constitutional amendments creating the system 
of legislation now under experiment in Oregon, and the modifi¬ 
cations herein suggested are simply intended to correct defects 
that experience has shown. If the proposed changes meet ap¬ 
proval, they can be put in form for submission to popular vote 
at the next general election. I earnestly hope that thoughtful 
men throughout the state will give the consideration to the sub¬ 
ject that its importance demands. 

Yours sincerely, 

CHAS. H. CAREY. 


New Responsibilities of Citizenship 


Persons living in great formative periods of history rarely 
are able to understand the social change that is going on about 
them. This fact is shown by contemporaneous literature, and is 
in accordance with reason and experience. The perspective of 
time is required to enable one to observe and to give due propor¬ 
tion to the various elements of such movements; and, indeed, 
some of the profoundest changes are entirely unperceived or 
ignored in their day. 

It is quite apparent, however, that in our own time, and es¬ 
pecially within the past five years, a most remarkable turn of 
social and political tide has set in. What the extent of the meta¬ 
morphosis will be, our generation, perhaps our century, will 
hardly be able to answer. It is clear that in the United States 
there is a decided tendency toward a popularization of political 
power, especially the law making power. This tendency is observ¬ 
able not alone in our own state, which in some respects ha.^ blazed 
the way for others to follow, but elsewhere throughout the 
Union. And concurrently with this movement, and it may be to 
some extent because of it, there is a marked growth of interest in 
the doctrines of socialism and philosophic anarchism. The spirit 
of revolution is abroad, and it will be for the future historian a 
fascinating study to discover the causes, and to examine the scope 
and consequences of the impulse. The movement is evidently 
not confined to the United States. The fact is that there is a 
social ferment in various European countries, not less interesting 
and not less profound in depth and influence upon political insti¬ 
tutions than in our own country. 

In Oregon, extraordinary constitutional changes have already 
been adopted. It is more than likely, in view of what has been, 
that further radical changes will follow. I am not here to 
denounce at wholesale such changes as ill-advised, or worse. Be 
it my duty, rather, to point out some considerations that may have 
a bearing on future conduct. 

The mouth of the demagogue in these days is full of phrases 
about the rights of the common people. He is sure that the 



common man is downtrodden and oppressed, and that we should 
have a return of the good old days when everybody was on an 
equality, and the rich and the powerful could not take advantage 
of the humble citizen, and when the people themselves made the 
laws. It is assumed, and freely asserted, that popular rights 
have been lost, and that there was a time when every one had a 
part in the law making. As tliis latter statement represents a 
popular fallacy which is not well grounded upon historical fact, 
it may be well, before proceeding, to give this subject some slight 
consideration. 

Citizens of the United States at the present time are not 
only the richest in material wealth, and the most comfortably 
housed and the best fed of those of any cpuntry on earth, but 
they also enjoy (without reference to the power of direct legis¬ 
lation and direct nomination) greater political power and have 
more individual influence upon public affairs than was enjoyed 
by their forbears. I have no sympathy with those misguided 
teachers who stand in the public places and raise their voices in 
an effort to divide the people into classes, to denounce the rich, 
and to excite the envy and hatred of the poor and the ignorant. 
They may be heard crying that the rich grow richer, and the 
poor grow poorer, and that the laws are made for the corpora¬ 
tion, and the courts sell justice. This talk is not new. It is 
as old as history. 

Demosthenes was accused of corruption, and in his time, 
according to Aeschines, the republic of Athens was a hotbed of 
iniquity.* And Hegel says that the perfect bloom of Greek life 
lasted only about sixty years, from the Median Wars, 492 B. C., 
to the Peloponnesian War, 431 B. C., and except during that 
period, corruption in public life in both Athens and Sparta was 
very general.** 

The same was true of Rome. The great used money with 
the populace for their votes. Extravagance and corruption in 
public and private life prevailed to such an astonishing extent 
for generations that the wonder is not that Rome finally fell, 
but that it could last in power as long as it did. In the days of 
the republic, as far back as 160 B. C., the complaint was that the 
small land owners went off to follow the eagles, or swell the 
proletariat of the cities, while their holdings were merged in the 

* Demosthenes, pp. 307-343. 

** Hegel, History of Philosophy, p. 265. 

4 

■}m 

'T 


MAR 24 161'll 



vineyards, olive yards, and, above all, in the great cattle farms 
of the rich. Land monopoly was the complaint of the day, and 
with the wealth derived from the foreign wars the rich lived in 
unheard-of luxury, while the poor were driven to the verge of 
slavery.* 

Essayists and poets have frequently deplored these evils. 
Before our revolution, in 1764, Oliver Goldsmith, in “The Trav¬ 
eller,” denounced the growth of opulence and the increase of 
poverty, and sang in despondent numbers of the misfortunes of 
families 

“ Forced from their homes, a melancholy train, 

To traverse climes beyond the western main; 

There wild Oswego spreads her swamps around, 

And Niagara stuns with thund’ring sound.” 

And he devotes his beautiful poem, “ The Deserted Village,” 
to a development of the text, 

“ Ill fares the land, to hastening ills a prey. 

Where wealth accumulates, and men decay.” 

It was just at the close of our revolution that Cowper wrote 
“ The Task/’ as he said, “ to combat that predilection in favor 
of a metropolis that beggars and exhausts the country, by evacu¬ 
ating it of all its principal inhabitants.” In it he enumerates as 

“ the plagues that waste our vitals— 

* * * peculation, sale 

Of honor, perjury, corruption, frauds— 

By forgery, by subterfuge of law, 

By tricks and lies as numerous and as keen 
As the necessities their authors feel.” 

Lord Lyttleton, who wrote some rather bad poetry, once 
dropped into rhyme on the subject and vented his feelings in 
the following lines: 

“ Hence, wretched nation, all thy woes arise; 

Avowed corruption, licensed perjuries, 

Eternal taxes, treaties for a day. 

Servants that rule, and senates that obey.” 

. And to go still further back, here is Shakespeare: 

” In the corrupted currents of this world 
Offense’s gilded hand may shove by justice; 

And oft the wicked prize itself 
Buys out the law.” 

♦Mommsen, History, Rome, Bk. 4, ch. 2. Pelham Outlines of Roman-Hist. 
Bk. 4, ch. 1. 


5 



I venture to say that complaints against the inequalities of 
wealth, and criticisms of courts and public officials for partiality 
or veniality, are made in every civilized country and in all periods. 
I believe that the public men of our time are not a whit worse 
than those of earlier days, and I am satisfied that the pages of 
history show that the world grows better and not worse. 

Let me refresh recollection with a few illustrations that all 
will recognize, in the period of ten years between 1865 and 1875. 

In 1867 occurred the Erie Railroad scandal in New York, 
with its stories affecting the courts, and tales of high finance and 
corporation greed beyond belief; the Credit Mobiler and Union 
Pacific manipulation began in 1864, and many of the ablest men in 
public and business life were involved; the Standard Oil Company, 
that still is in the limelight, was, according to TarbelFs history and 
the government reports, engaged in its most nefarious operations; 
Gould and Fisk conducted the thieveries of the gold clique, and 
Black Friday was followed by the financial panic; this was the 
time of the Tweed Ring in New York, with its notorious briberies 
of judges, legislators and city officials; and of the paving scan¬ 
dals in Washington City; and of the Ku Klux reign, and the 
Force Bill, and the Whiskey Ring. In these various operations 
the names of the President, Vice-President, Secretary of the 
Treasury, Speaker of the House of Representatives, numerous 
senators, congressmen, judges and lesser officials were freely 
used in the news reports as being parties to frauds, briberies 
and thefts. 

Perhaps if the Cassandras who nowadays bewail the woes 
of our land could be made to read American history with atten¬ 
tion they would appreciate how much we have improved on 
former conditions. They would learn that bribery has always 
been a common charge—a charge made often in the time of 
George Washington. It was even said that money was corruptly 
used to influence the adoption of the United States Constitution,* 
and there is no doubt that it was used to influence elections, often 
openly and shamelessly in the early days of the republic. 

The debates upon the adoption of the Federal Constitution 
show that legislative corruption was an evil then well known, 
and that it was deemed common in republics. “ In Massachu¬ 
setts,” said Gerry, “ the worst men get into the legislature.”** 

*1 McMaster, Hist. U. S., p. 478. 

** Elliott’s Debates, Vol. V, p. 160. 

6 



In England, at the same period, money, pensions, and prom¬ 
ises of place and titles, were freely used to influence Parliament. 
Walpole said that Bute carried his measures by deliberate bribery, 
and it was shown on investigation that i25,000 were used from 
the treasury for that purpose. King George III himself, though 
a good churchman, suggested bribes at times. He wrote to Lord 
North: “ If the D. of Northumberland needs some gold pills 

for the election, it would be wrong not to give him some assist¬ 
ance.” At another time he wrote of sending £6,000 to be placed 
to the same purpose as previous sums used for bribery. One 
case of wholesale bribery at that time is known to have cost the 
country £285,000, and another £900,000, half of which went to 
members of the House of Commons. Representation in Parlia¬ 
ment in certain boroughs was openly sold through brokers to 
the highest bidders. Seemingly, the government was not con¬ 
demned for using such means to perpetuate itself in power.* 

Now look at the criticism of the courts and the lawyers at 
the same period. In Massachusetts and New Hampshire assem¬ 
blages of the people adopted resolutions complaining of griev¬ 
ances, including the charge that lawyers brought suit to collect 
debts and courts awarded judgment in favor of the rich against 
the poor. The lawmakers were petitioned “ to crush, or at least 
put a proper check * * * on that order of Gentlemen denom¬ 

inated Lawyers, the completion of whose modern conduct appears 
to us to tend rather to the destruction than the preservation of 
the commonwealth.”** 

The newspapers of the period insisted that lawyers should 
be abolished as a class, and advocated leaving them out of office. 
Later it was urged as a grievance, in the newspapers, that persons 
who were poor, and who never had a case in court, and never 
expected to have one, should be made to pay taxes and defray 
the cost of its sittings. 

Resolutions were adopted in public meetings, “ that attorneys 
ought to be expelled from the courts, debts cancelled, and if the 
legislators would not pass these laudable acts, it would be an easy 
matter to make them.”*** 

Town meetings were held in various places in New Hamp¬ 
shire, Vermont and Massachusetts, and threats of bodily harm 

* The American Nation; Preliminaries of the Revolution. G, E. Howard, p. 31. 

** Adams, Hist, of Quincy, 264, 265. 

*** 1 McMaster, Hist. People of U. S., pp. 303, 348-51. 


7 



were made against both lawyers and judges. Armed mobs sur¬ 
rounded the courthouse at Rutland and Windsor and broke up 
their sittings, believing stories told of unjust and fraudulent 
dealings, and harsh decisions. 

In the Boston Gazette, November 26, 1787, advocates of the 
adoption of the constitution were declared to “ consist generally 
of the noble order of C(incinnati)s, holders of public securities 
* * * B(anker)s, and L(aw)y(er)s; these with their 

train of dependents form the Aristocratick Combination—the 
L(aw)y(er)s in particular, keep up an incessant declamation for 
its adoption, like greedy gudgeons they long to satiate their 
voracious stomacks with the golden bait.”* , 

In 1786, people found fault with the rich merchants of 
Boston, calling them the vampires of state. They were com¬ 
plained of because they would drink costly wines and wear im¬ 
ported stuffs. The wives and daughters of the governor were 
said to live without work, instead of toiling like common people.** 

The Federalists were derisively called the “ well born,” the 
distinction between the patrician families and the plebeians was 
almost as great in New York and in the Southern States as in 
European countries; and in spite of the ostentatious democracy 
of some of the well-to-do, there never has been a time in the his¬ 
tory of our country when the wealthy were more influential than 
at the beginning of the republic. 

After a few years of the constitution, when the Republicans 
came into power, in 1801, the Federal judges were so unpopular 
that to get rid of them sixteen of the-circuit judgeships were 
abolished; the supreme justices were made to go wandering over 
the country doing circuit duty; the “ midnight judges ” appointed 
by President Adams on the eve of going out of office were pre¬ 
vented from' getting their commissions by President Jefferson; 
the August term of the Supreme Court was abolished to prevent 
the court from making decisions in certain cases; impeachment 
proceedings were begun against two Federal judges, both trials 
being attended with every indication of partisanship, and after 
the failure of one of the trials before the senate, it was actually 
urged upon congress by John Randolph, of Virginia, that the 
constitution be amended to give the President the right of removal 
of the judges on the joint address of the two houses of congress; 

* Am. Nation; The Confed. and Const., McLaughlin, p. 289. 

**Id., 12-157. 


8 



and another congressman went still further in urging that since 
the senate refused to do its duty in voting for impeachment, the 
constitution be amended to give the states the power to recall 
their senators at any time they might think proper. 

Now, it is worth while in considering the innovations in 
constitutional government advocated in this first decade of the 
twentieth century, to turn back to these pages of early history, to 
remind ourselves that the arguments now advanced to support 
radical changes are old arguments after all. Abuses there are, 
but not more vital than the abuses of earlier days. Reforms are 
needed, but they may be worked out without throwing away the 
experience of history. The aggressions of wealth and corporate 
power, the delays and uncertainties of judicial proceedings and 
in the punishment of crime, the failure of legislators to faithfully 
serve the people, are evils to be sure, but not greater than the 
evils that have been coped with by earlier generations. 

The patriotic men who so earnestly sought to frame a fed¬ 
eral government that would best withstand the test of time appre¬ 
ciated the danger from direct popular legislation, and, as the 
debates show, agreed with practical unanimity that a democracy 
was much less stable, and much more amenable to this cause of 
decay than a representative form of government. Among the 
names of those who pointed out the distinction and advocated 
the republican form are Hamilton, Madison, Ames, Gerry, Ran¬ 
dolph, Wilson, Marshall, Rutledge, Bowdoin, Pendleton and 
Mason, besides many others. 

It may surprise some of the modern law givers to learn 
that the reasons then urged against direct legislation were that 
experience of the past proved that turbulence, passion, partiality, 
lack of debate, despotism of majorities, insecurity of personal 
and property rights, intrigue of the designing, debauching 
of public morals, veniality, and destruction of popular govern¬ 
ment, would result if the plan adopted should follow the pattern 
of the ancient democracies; and the representative plan, with its 
checks and safeguards, was considered the greatest invention and 
most important achievement of the convention. 

Said Hamilton in the Federalist: 

“ The difference most relied upon between the American and 
other republics consists in the principle of representation; which is 
the pivot on which the former moves, and which is supposed to be 
unknown to the latter, or at least, to the ancient part of them.”* 

* Federalist, No. 62. 


9 



And Jefferson said: 

“ Modern times have * * * discovered the only device by 

which the (equal) rights (of man) can be secured, to-wit: govern¬ 
ment by the people, acting not in person, but by representatives 
chosen by themselves, ****** 


We will stop a moment, then, to examine the historical basis 
of our constitutional and legal rights, as citizens, to assist in the 
making of the laws, and to take our share in the duties of govern¬ 
ment. We will find that there is no foundation for the claim that 
Americans have been deprived of the right of the direct exercise 
of the law making power. On the contrary, the essential differ¬ 
ence between a pure democracy and a representative system of 
government, as applied to general legislation, has been preserved 
since very remote times. 

Early German society was founded primarily upon distinc¬ 
tions in land ownership and in rank. None but the land- 
owners possessed the right of participation in the popular assem¬ 
blies, or to bear arms; there was also a broad distinction between 
the free, and the servi, or unfree. In the popular assemblies of 
those primitive people, none but the freeman had a voice, and 
the supposition that there was among them an equality of priv¬ 
ilege and an universal suffrage, or even a general participation in 
the law making function, is founded upon misapprehension and 
error. So, when the Teutons invaded Britain, and brought their 
institutions with them, the local assemblies were there; the greater 
popular meetings of the parent country were also preserved in the 
witangemot and in the folkmoot; but the fundamental distinctions 
or rank and land proprietorship were also there. None but the 
freemen could participate in the ownership of land, or, conse¬ 
quently, in the right to take part in governmental affairs. The 
unfree consisted of different grades, from the slave to the agrarian 
dependents with more or less liberty. In the generations follow¬ 
ing the first settlements, the system of feudal tenures was evolved. 
The distinction in class still persisted, and became more and more 
firmly established. 

Neither time nor space permits, within the limits of this, 
paper, details in these matters of basic history, but it should be 
kept clearly in mind that equality before the law, in the sense of 

* Jefferson’s Works, VII, 319. 

10 




social or political equality, was not a part of the autonomy of 
government, either in remote or later periods of English history. 
Notice, too, that whatever the fact may have been with reference 
to the Germanic tribes, while they were more or less nomadic and 
migratory, a people small in numbers and loosely established, it is 
clear that in England, almost from the beginning, the representa¬ 
tive system prevailed. For, while the township assembly was 
purely democratic and not elective, but consisted of either free 
alodial owners, or of dependent agrarians, as the case might be, 
the larger assemblies, such as those of the shire or the kingdom, 
consisted of elected representatives sent by these lesser assem¬ 
blages. 

Except in making the local by-laws, therefore, the legislative 
powers of the people were, from remote times, in England, exer¬ 
cised by delegates or selectmen. This fact is interesting in noting 
that, as the centuries slipped away, and gradually the power of 
the sovereign increased, and the ancient rights of the people were 
encroached upon, until endurance ceased to be a virtue, and then 
there was wrested from the King the Great Charters of our liber¬ 
ties, it was not an assembly of all citizens that dealt with the 
crown, but a parliament of the “ three estates,” These estates 
were the clergy, the barons, and the commons, but the commons 
were represented in parliament by persons chosen by certain 
electors. These electors did not by any means comprise all the 
lower classes, they were themselves essentially a privileged class. 

One of the great writers on English history says that “ the 
House of Lords not only springs out of, it actually is, the ancient 
witangemot;” that is to say, the ancient popular assembly of 
landed freemen, in the course of time, had become the hereditary 
house of the peers. The earliest form of the representation of 
the commons, or the third estate in parliament, was by the shire 
assemblies electing the knights of the shire, who represented the 
lesser land owners, and the commercial interests of the towns. 
Thus it will be seen that the common people at large never par¬ 
ticipated in the great assemblies or parliaments, even in the early 
times. The general laws were not made by assemblages of the 
people, but by delegates or representatives, and the delegates were 
not of the lower order. 

It was an assembly of such delegates that formulated the 
demand upon King John for the charter of liberty, and when 
he called the barons together at the historic field of Runnymede, 

11 


on the Thames, and there executed the instrument under oath, 
this was done in the presence of twenty-five of their number 
chosen to represent the whole body. The twenty-five were not 
from the lowly people; they were all barons. 

It was not until very recent times that there was any ap¬ 
proach to manhood suffrage in England. In the American states 
at the time of the adoption of the constitution, there were various 
restrictions on the right to vote, and it was after the nineteenth 
century began that the right to vote became free to all, excepting 
the slaves in the South. 


We have approached the subject of our thesis indirectly. 
My aim is to show that with the recent modifications of the 
Oregon Constitution, the people have taken a step that has 
brought new and serious responsibilities of citizenship. Whether 
I have succeeded in demonstrating that the step was not forced 
by new conditions of political, commercial or social life, and is 
an experiment ventured upon against the teaching of history, is 
of no moment. But the grave question is, how will the people 
meet the new demands made upon them? In view of the fact 
that the representative System in the republic has been on trial 
but a century and a quarter, and that the principle now engrafted 
upon the Oregon constitution, if applied to the ultimate, is utterly 
subversive of this essential feature of the American plan, the 
subject is one of deep concern.' 

In 1857, Macauley wrote to an American correspondent; 

“ I have long been convinced that institutions purely democratic 
must, sooner or later, destroy liberty or civilization, or both. In 
Europe, where the population is dense, the effect of such institutions 
wouM be almost instantaneous. What happened lately in France is 
an example. * * * j smallest doubt that if we had 

a purely democratic government here the effect would be the same. 
Either the poor would plunder the rich, and civilization would perish, 
or order and prosperity would be saved by a strong military govern¬ 
ment, and liberty would perish. You may think that your country 
enjoys an exemption from these evils. I will frankly own to you 
that I am of a very different opinion. Your fate I believe to be cer¬ 
tain, though it is deferred by a physical cause. As long as you have 
a boundless extent of fertile and unoccupied land, your laboring pop¬ 
ulation will be far more at ease than the laboring population of the 
Old World, and, while that is the case, the Jefferson politics may 

12 



continue to exist without causing any fatal calamity. But the time 
will come when New England will be as thickly peopled as old Eng¬ 
land. Wages will be as low, and will fluctuate as much with you as 
with us. You will have your Manchesters and Birminghams, and in 
those Manchesters and Birminghams hundreds of thousands of arti¬ 
sans will assuredly be sometimes out of work. Then your institu¬ 
tions will be fairly brought to the test. Distress everywhere makes 
the laborer mutinous and discontented, and inclines him to listen with 
eagerness to agitators who tell him that it is a monstrous iniquity 
that one man should have a million, while another cannot get a full 
meal. In bad years there is plenty of grumbling here, and sometimes 
a little rioting. But it matters little. For here the sufferers are not 
the rulers. The supreme power is in the hands of a class, numerous 
indeed, but select; of an educated class; of a class which is, and 
knows itself to be, deeply interested in the security of property and 
the maintenance of order. Accordingly, the malcontents are firmly 
yet gently restrained. The bad time is got over without robbing the 
wealthy to relieve the indigent. The springs of national prosperity 
soon begin to flow again, work is plentiful, wages rise, and all is 
tranquillity and cheerfulness. I have seen England pass three or 
four times through such critical seasons as I have described.. Through 
such seasons the United States will have to pass in the course of the 
next century, if not of this. How will you pass through them? I 
heartily wish you a good deliverance. But my reason and my wishes 
are at war, and I cannot help foreboding the worst.”* 

When the great historian wrote these pessimistic views of 
our country, Americans had an intense pride in their institutions, 
a veneration for the constitution that almost amounted to fetish 
worship, and a confidence in its sufficiency for all purposes (aside 
from the questions of slavery and state’s rights) that has been 
repeatedly commented upon by such interested foreign observers 
as De Tocqueville, Von Holst, Munsterberg and Bryce. Mr. 
Bryce, perhaps the most sympathetic and admiring of the foreign 
writers that have studied our political institutions, gives as a 
reason for the probable permanency of the American government, 
the profound attachment of the people for the constitution. 
'‘The Federal Constitution,” he says, “is, to their eyes, an 
almost sacred thing, an Ark of the Covenant, whereon no man 
may lay rash hands.”** 

When the civil war settled the only apparent cause of discord, 
and the new amendments were adopted, there seemed to be an 
universal feeling of confidence in the perpetuity of our republic. 
It seemed that thereafter, when greater questions would arise 

* Macauley’s Life and Letters, II, p. 408-9. 

** 2 Bryce, Am. Commonwealth, p. 474. 

13 



for settlement, they would be settled within the constitution. 
The supreme law of the land was a firm foundation, a standard 
rule and guide, a safe anchor in any storm. 

It has come to pass in these days that the restraints and limi¬ 
tations of the constitution are no longer respected. On all sides 
we hear the constitution denounced as antiquated and insufficient 
for modern needs, and when courts apply it as the test, they are 
not infrequently abused in most intemperate language. Now, this 
may be popular, but before we allow ourselves to drift too far 
it may be well to see our direction and our danger. 

The written constitutions of the United States have been 
well said to take the place in some degree of the ancient and 
revered institutions, customs and usages that in other countries 
tend toward stability. Here we have a nation whose citizenship 
is made up of many elements. Part of the population is foreign 
born. Some of these persons are from countries where the laws 
and methods of government are radically different from ours; 
some of them are unable at first to comprehend our institutions; 
and some of them would find it difficult to participate with intel¬ 
ligence in any form of popular government. A considerable 
percentage of the native born citizens, white and black, have little 
appreciation of the duties of citizenship. On the other hand, 
great fortunes are quickly made, and wealthy men and powerful 
business corporations are apt to pay little attention to any curb 
that holds them in check. Under these conditions, written con¬ 
stitutions are a great safeguard and protection to the right to 
enjoy life, liberty and the pursuit of happiness. Their very rigid¬ 
ity is a protection from force and power and wealth, on the one 
side, and from the tyranny of majorities on the other. 

Yet, written constitutions are not inflexible. They do not 
always require formal amendment to meet new conditions. 
Amendments to such instruments, as a rule, are not readily made, 
nor is it desirable that they be readily made. But as customs 
and manners and habits of thought change from time to time, so 
the application and interpretation of a written constitution 
changes to meet new conditions. Not that courts rewrite the 
instrument, or interpose new words or phrases, but that with the 
development of the nation the instrument comes to have new ap¬ 
plications. Professor Bryce has said that the constitution of 
the United States has “ stood because it has been submitted to a 

14 


process of constant, though sometimes scarcely perceptible change, 
which has adapted it to the conditions of the new age.” 

Such modifications, because they are gradual, are not harm¬ 
ful ; but if it comes to pass that the instrument may be amended 
at will, or, more serious still, that laws adopted by popular vote 
need not conform to the constitution, the danger in times of public 
passion or prejudice is easy to understand. 

The popular impulse is often wrong, and even when right 
it is apt to swing to the extreme and then be followed by a reac¬ 
tion. Without restraints, therefore, the laws may become uncer¬ 
tain, or even unjust and unreasonable. 

It is to the habit of resting with a sense of security under 
the law that free governments owe their existence. Without this 
general feeling of respect for law and order, change would be 
frequent. All admit that the respect for the supreme law of the 
land is a great influence for peace and order. 

“ As a fact, however, popular expression upon particular meas¬ 
ures, even the attitude of some inferior courts, appears to indicate 
an unexpressed conviction that the constitution, in the changed con¬ 
dition of commercial life, is no longer a safe guide; that the process 
of amendment is too slow, that public interests make it necessary 
for congress to grasp and exercise new powers, and for courts to 
support these new jurisdictions.”* 

Doubtless much of this is true, and new conditions require 
new remedies. But methods, which if set in motion, will ulti¬ 
mately destroy the fabric of government, are not to be used while 
moderation and reason control. 

In Oregon, we now permit the constitution to be amended 
at will. Formerly, it required not only the majority of all of the 
electors (meaning the majority of the greatest number participat¬ 
ing in the election) to change the constitution, but the proposed 
amendment was required to be agreed to by a majority of all of 
the members elected to each house, in two successive legislative 
assemblies; now, a bare majority of those voting on the measure 
at any general election is sufficient to carry the proposition, 
though but a minority vote on it. Formerly, two years and a 
half in time, at the least, and the deliberations of four legislative 
groups, besides the vote of the majority of the people, was the 
requisite; now, in three months’ time, an amendment, perhaps 
prepared in a secret manner by a single individual, submitted 

* Prentice, Fed. Power Over Carriers and Corporations, p. 214. 

15 



practically without opportunity for debate, certainly without 
opportunity for pruning, polishing, or enlarging, and generally 
not even read by the voter, may be adopted by a mere minority 
of the electors! 

I say that this condition imposes new and grave responsibili¬ 
ties upon our citizens. Let them beware lest in seeking greater 
flexibility in the fundamental law of the state, they throw away 
the precious heritage of their liberties. Let them remember that 
it is by the restrictions of the time-worn instrument that disaster 
has more than once been averted; and that the stability, of our 
institutions is the safeguard of not property alone, but of liberty, 
and of life itself. 

Fortunately, our people are above the average in intelligence 
and respect for personal and property rights. An examination 
of the reports of the last census shows that a very large propor¬ 
tion can read and write; we have an excellent school system, and 
no very yellow journals. The experiment will be tried in safer 
conditions than might be the case elsewhere. But we are a new 
people, not bound by historic precedent, or accustomed to con¬ 
servatism by training or education. We are apt to be led to 
make experiments, where to experiment is unsafe. 

Aside from the ten amendments in the nature of a bill of 
rights adopted at the outset, the United States constitution has 
been amended but five times in 120 years. But at the state 
election, held last June, ten different amendments to the Oregon 
constitution were proposed, and voted upon. There is no limit, 
and it might well have been forty instead of ten. Among the 
amendments adopted were some that go to the very heart of 
representative government, such as proportional representation 
and the recall of public officers; the former being utterly vision¬ 
ary and impracticable, since it cannot be put into practice, and 
the latter being so discouraging to independence of thought and 
action by public officers, and so dangerous if captiously exercised 
upon the judges of the courts, or the principal executive officers 
of the state, that the very fact that these amendments are adopted 
at the first opportunity under the new scheme, is one of the most 
discouraging signs for the future of this experiment. 

Surely, I voice the sentiment of all thinking men when I say 
that some safeguard should be provided against the too free 
exercise of this new popular power. And if, as was the case 
formerly, while an amendment agreed upon by one legislative 

16 


assembly was awaiting the action of another legislative assembly^ 
or of the electors, no additional amendment might be proposed, 
then, I say, a similar protection now is the least that could be 
demanded, and the law should require that but one amendment 
might be considered at any one election. Indeed, I do not go too 
far when I assert that as matters stand there is no constitution; 
for it is subject to such flux and change as no longer to be the 
mainstay of our government. 

I have already shown how direct legislation obliterates the 
essential characteristics of representative government. It is ap¬ 
parent that if the people vote directly, the element of deliberation 
is lost, and that influence that the minority almost necessarily 
have in any deliberative body, tending as it must toward modifi¬ 
cation and compromise, has no opportunity for assertion. The 
theory that majorities rule, is by no means literally true in rep- 
resentatative government. The majority carries its measures; 
but, after reasonable opportunity for debate and amendment, its 
measures are no longer the same. It is this deliberation and dis¬ 
cussion, followed by amendment or possible defeat, that is essen¬ 
tial to sound legislation. 

In a recent book on Proportional Representation by J. R. 
Commons (p. 31) occurs the following: 

“ In the United States, today, not only the original Anglo-Saxon 
is admitted to the suffrage, but also millions from antagonistic races. 
Especially is this true of the large cities, where fifty per cent to 
eighty per cent of the voters are foreign born, and the children of 
foreigners. If England is threatened by the widening of the suf¬ 
frage, far more is the Republic of America. The great political ques¬ 
tions of today are those which grow out of the citizenship of the 
manual laborers, the former serfs,' * * * These classes are dis¬ 

tributed throughout all districts. They form the wide foundation 
structure of every community, upon which the other classes are built. 
They compose the majority of the voters.” 

De Tocqueville, who published his acute observations upon 
American political institutions in 1835, said: 

“ If ever the free institutions of America are destroyed, that 
evil may be attributed to the unlimited authority of the majority.”* 

He pointed out that the tyranny of the majority was not 
less to be feared than the tyranny of the despot. His words are 
echoed by another learned writer of foreign birth. Professor von 

* 1 Dem. in America, p. 273. 


17 



Holst, who published his Constitutional History of the United 
States in 1875, saying: 

«He * * The tyranny of majorities may often be placed on a 

footing with the tyranny of absolute sovereigns. If, in the former 
case, the means of defense are far greater than here, the dangers 
on the other hand are more serious, because tyranny comes clothed in 
the garb of free institutions.”* 

As the right to vote has been given to a much larger propor¬ 
tion of the people since the beginning of the republic, so has the 
character of the legislation changed, while the country has grown 
older and its social and economic problems have become more 
difficult and intricate. The number of laws enacted by the early 
legislative assemblies was few, and the subject matter was simple 
enough. But now the questions for legislative consideration at 
each session are such as require the exercise of the most careful 
and intelligent judgment. This is not alone because of the 
increase of population, its greater density, or its greater geo¬ 
graphic distribution. These things may have their influence, but 
the real cause is found in the great difference in society itself; in 
the enormous increase of material wealth, the wider dissemina¬ 
tion of news, the more frequent mail service, the introduction 
of labor saving machinery; the change from simple and com¬ 
paratively plain style of living; the introduction of the 
railroad, steamboat, telegraph, telephone, typewriter, electric 
light, automobile, and other inventions and instruments of modern 
life; and last, but not least, to the modification and enlargement 
of the functions of corporations as instrumentalities for the trans¬ 
action of business. 

Manifold, intricate and confusing are the swirling currents 
of modern life. To attempt to separate the threads, or to exam¬ 
ine, or even to enumerate, the changing and shifting elements, is 
utterly impossible. But the duty of the lawmaker must neces¬ 
sarily be vastly more complex and difficult now than in former 
generations; the responsibilities of citizenship are greater; and 
the intellectual and moral requirements for the exercise of the 
duties and privileges of citizenship are much higher than at any 
former period in the world’s history. 

Here, then, in the problem: Shall it be that with these con¬ 
ditions before us, the safeguards formerly surrounding the process 
of making laws shall be entirely withdrawn ? 

* 1 von Holst, p. 211. 

18 


k 



Heretofore, when a law was proposed for enactment, it was 
required to pass through two houses of the legislature and be 
signed by the Governor, and the journals must show each step 
in its progress through the assembly. The usual steps in this 
progress were for the bill introduced into either house to be read 
twice by title, then to be referred to a committee. Here it was 
supposed to be carefully scrutinized and debated. Hearings of 
persons interested were had, and such amehdments as seemed 
necessary would be recommended by the committee. The report 
of the committee being received, it might be accepted or rejected, 
and the bill when under consideration for its final passage would 
be read in full by sections, and further subjected to discussion and 
amendment, and would be recommitted, defeated or passed. Then 
the same process must be gone through with in the other house, 
and any new amendments would cause its return to the house 
from which it originated. And when finally passed by both 
houses, and properly enrolled and engrossed and signed by both 
presiding officers, it reached the Governor's hands for executive 
action. 

Consider how carefully the constitution guarded against 
hasty and unwise legislation. And yet, with all this, it is a 
matter of general knowledge that much of the legislation thus 
adopted has been found defective in form, or crudely conceived or 
expressed, or unscientific, careless, ill-advised or insufficient. 

By the constitution, many safeguards and checks are pro¬ 
vided, such as the prohibition of the passage of special and local 
laws of certain kinds; the requirement that the title must indicate 
the subject matter, and that but one subject shall be legislated 
upon in each enactment; the requirement that an amended law 
must be set forth in full as amended; and many others that might 
be named. How far these provisions and other provisions of the 
constitution apply to legislation adopted by direct vote of the 
people, under the initiative system, no man is now prepared to 
say, and these questions are for the courts to decide. Certainly, 
such laws are not capable of having applied to them the pre¬ 
cautionary clauses regulating preparation and deliberation prior 
to passage, as is the case with legislative enactments. 

At the recent state election, besides the ten constitutional 
questions submitted to vote, nine other subjects of legislation were 
voted upon. These measures, with the accompanying printed 
arguments, when published by the Secretary of State in pamphlet 

19 


form prior to the election, in pursuance of the legal requirement 
therefor, comprised some 124 pages of closely printed matter. 
It would require an intelligent study of this pamphlet to qualify 
for vote on these propositions, many of which were of such char¬ 
acter as to totally change fundamental and existing principles 
of state government. I shall not attempt, at this time, to review 
these measures and to point out their defects. But a moment’s 
time may be given by way of illustrating my theme. 

One is a law changing the time of holding general elections 
in the state; but it is a question how far this may alter numerous 
co-related statutes, fixing the time when terms of office begin, 
and relating to other subjects of importance. 

Another is known as the “ Corrupt Practices Act.” This 
law consists of fifty-five sections and over nine thousand words, 
or twenty pages of closely printed matter; its title is such 
as to readily secure the vote of any right-minded citizen, and its 
sponsors undoubtedly had no other purpose in proposing the 
measure than to promote the public welfare. But it goes without 
saying that very few voters could or would read and digest the 
provisions of a proposed law of such length and complexity, and 
it need surprise no one who voted in favor of its adoption if it is 
afterward discovered to contain clauses that were not generally 
known, and that are more or less lost to sight in its long pages. 
This law is highly penal, the punishment for violation of any 
provision of the act, the punishment for which is not otherwise 
specially provided, being not more than a year in jail, or a 
fine of not more than $5,000, or both; besides which any elector 
may contest the right of a person to nomination or office, on the 
ground of deliberate, serious and material violation of any of the 
provisions of the act, and the candidate whose nomination or 
election is annulled and set aside for any offense under the act 
may not be elected or appointed to office or position of trust, 
honor or emolument for a period of time. Among other offenses 
under the act is wearing a political badge or button on election 
day. The paying of a person for services on election day, 
such as distributing cards, or carrying banners or furnishing 
vehicles, seems to be prohibited. The provisions regulating the 
duties, and the prohibitions against the doing of various things, 
are extremely numerous, covering election expenses and state¬ 
ments of expenses and affidavits, the failure to file which deprives 
the candidate of the right to have his name upon the official bal- 

20 


lot; and the expenditures regulated include those of not only the 
candidate, but of a descendant, ascendant, brother, sister, uncle, 
aunt, nephew, niece, wife, partner, employer, employe, or fellow 
official or fellow employe of a corporation. Cousins and friends 
do not seem to be included in this regulation. 

Notwithstanding the constitutional provision that all elec¬ 
tions shall be free and equal, the law in effect imposes a duty upon 
candidates for nomination to pay from one hundred down to ten 
dollars, depending on the name of the office, for a page of space 
in a publication to be printed by authority, and those who have 
any money left may purchase additional space at the rate of $100 
per page, no payment to be less than for one page, and not more 
than three additional pages to be allowed any one candidate. 
Opponents are also permitted space in this pamphlet to argue 
against the candidate, on paying for the privilege. This pamphlet 
is to be mailed by the Secretary of State to all voters. Political 
parties and independents are permitted to pay for space in a 
pamphlet to be issued before election, but the tax is but fifty 
dollars per page in this publication. And in certain cities some¬ 
what similar publications are to be issued, the space costing the 
candidate twenty dollars per page. 

Most elaborate regulations concerning the keeping and filing 
of accounts and vouchers for election expenses are provided; as 
well as prohibiting payments and promises to influence votes; 
prohibition of political contributions or attending conventions by 
office holders; of contributions by corporation officers; of treat¬ 
ing, threats, betting and numerous other matters. 

Now, it must be admitted that however salutary such legis¬ 
lation, this is a very complex law. Many of its features trench 
upon personal rights that have long been cherished; and in seek¬ 
ing to regulate elections, the elaborate and paternal supervision 
of persons and political organizations will seem to many citizens 
extreme and unnecessary, if not unconstitutional. Such a statute 
is not one that presents a concrete proposition to be voted upon, 
yes or no, by the people as law makers. It is such, by its very 
nature, that opportunity for debate and amendment should be 
permitted. Voters may with great unanimity favor the general 
principle involved, and may readily support the measure because 
of its fair title and its general good design; but this is not enough 
to answer the requirement of intelligence and knowledge in the 
exercise of the law making power. It is but fair to state, how- 

21 


ever, that this measure was before the legislature and failed to 
pass, so that there was this reason for submitting it on the 
initiative. 

To take another illustration: 

At the last state election the people voted favorably upon the 
adoption of two separate and distinct measures regulating salmon 
fishing in the Columbia and Sandy rivers. It is notorious that 
these measures were severally prepared in the interest of business 
competitors in fishing and canning salmon on those rivers. The 
two statutes are utterly at cross purposes, and their adoption 
concurrently presents a situation that will require further legis¬ 
lation to untangle. These measures were reasonable enough in 
title. So far as the Australian ballot showed they were proper 
laws for adoption. But it is probable that few voters read the 
bills carefully, or voted understandingly upon them. 

At the same election the entire state voted on the creation of 
Hood River County^ and also on a proposition regulating the 
price of meals to prisoners in Multnomah County. These were 
purely local concerns, on which few persons not directly inter¬ 
ested could act with judgment. 

I call attention to these examples, not for the purpose of pro¬ 
testing against direct legislation in general, but to emphasize the 
fact that under the Oregon constitution as it exists, a new and 
grave responsibility has been imposed upon the citizens. As I 
have already said, this responsibility calls for the exercise of a 
very high degree of intelligence, a personal study of measures 
proposed for consideration. That the new duty has not been 
well performed in the case of the salmon legislation is apparent, 
but the failure in this instance is not more glaring than the failure 
of legislatures to do their duty in other instances. It is fair 
to credit the voter with a sincere desire to vote right upon the 
questions submitted, and it is evident that in cases where the 
question is one of general policy or principle, on which he can 
express himself by a yes or no vote, the best judgment and will 
of the majority of the people may be secured. In cases, however, 
where the proposed measure consists of many intricate and 
involved provisions, the fact that there can be no opportunity of 
amendment, or any guarantee that the measure will be read or 
fully comprehended in all its bearings, points to a danger in this 
mode of securing legislation. The danger is not so apparent in 

22 


cases where the vote is upon the referendum, for there it is to 
be presumed that the measure voted upon has had the benefit of 
revision in the legislative assembly, and examination by the Gov¬ 
ernor. 

In many of the rural districts of the state, where intelligent 
interest is manifested in the working of the new scheme of legis¬ 
lation, there will be neighborhood meetings, and debates, and 
lectures on the proposed laws; but elsewhere, and especially in 
the towns and cities, few will read or meet to discuss such meas¬ 
ures, and the best that can be expected is that some will find in 
the newspapers brief statements of the general purport of the 
laws to be voted upon. 

These reflections suggest the inquiry whether, where the 
initiative system is to be used, it should not be confined to cases 
in which the law voted on shall be expressive of a single principle 
or remedy. 

The American people have long been accustomed to vote 
upon constitutional amendments; sometimes other measures have 
been submitted to popular vote for ratification or adoption. It 
will be found that usually in these instances the duty required did 
not involve more than an affirmative or negative vote upon a 
single question. It is when the duty involves more than this that 
the chief danger of the wholesale adoption of ill advised and badly 
prepared bills will be encountered. 

I am of the opiniort that for the reason already stated the 
power of the referendum is not open to the criticisms I have men¬ 
tioned, but that it ought not to be made the means of holding 
back, and perhaps by the delay making ineffective, measures 
adopted by the legislature, unless a much larger percentage of 
voters sign the petition than is now required. And I suggest the 
question whether, since the real object of the initiative is to enable 
the people to make laws where their servants in the legislative 
assembly are recreant to duty, it would not be advisable to con¬ 
fine its use to cases where the assembly has refused to pass a bill 
introduced, and where the executive veto has defeated a bill voted 
by the legislature. 

But my purpose is served by showing that in this new field 
there is room for the highest order of statesmanship and patriot¬ 
ism. Timid men, believing that it is not popular to question the 
all-sufficiency of this new scheme that has been adopted by such 

23 


iiiiiiiliiiiii 

0 028 001 687 1 

___ 

substantial majority in Oregon, will hesitate to undertake the 
duty of formulating and urging modifications and restrictions. 
But if the initiative is to be upheld as a part of our plan of gov¬ 
ernment, it should be so limited as to insure against worse evils 
than those it was designed to correct. 

I will not pursue the subject further, but will summarize 
what I have said in these propositions: 

1. There is a marked tendency in the United States and in 
other countries toward enacting sweeping legislation on novel 
principles. 

2. The evils that apparently give a reason for these changes 
are not more serious than have been experienced and dealt with 
before. 

3. The plan of vesting the law making power in the people 
at large is not new in history, and was expressly rejected in favor 
of the representative plan by the founders of the United States 
constitution. 

4. The recent changes in the Oregon constitution, and the 
facility with which it may now be amended, put new and serious 
responsibilities upon the electorate. 

5. The initiative system of law making, in the form now 
under experiment in Oregon, requires the exercise of an extraor¬ 
dinary degree of intelligence, impartiality, and devotion on the 
part of those having the right of suffrage, and is open to certain 
criticisms that suggest limitations upon the exercise of the power. 

6. These suggestions embody the following changes in the 
present plan; 

(a) Limitation of the number of constitutional amendments, 
and of initiative measures that may be submitted to vote at any 
one election. 

(b) Limitation of the subject matter of any such measure 
to a single proposition, in concrete form. 

(c) Confining the use of the initiative to bills that have been 
introduced and failed to pass in the legislature, and those that 
have been vetoed by the Governor. 

(d) Modifying the referendum to require a larger number 
of petitioners. 


CHARLES H. CAREY. 








